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Criminal Reference No. 4 of 1972, decided on 8th March 1974.

‑‑ Ss. 516‑A & 517‑Disposal of property‑Order under S. 516, Cr. P. C.‑‑Interlocutory and for purpose of safeguarding property and rights of parties‑Trial Court bound under S. 517, Cr. P. C. to hand over property to person entitled to its possession and not to person, claiming as its owner‑Fact whether theft in respect of disputed property at all committed or not yet to be decided‑Property, held, rightly ordered to be handed over to person from whom last recovered, in circumstances of case but handing over subjected to furnishing of security.

Habibur Rashid for the State.

Asad Ali Bilgrami for Respondent No. 1.

Abdul Karim Lakhan for Respondent No. 2.

Date: of hearing: 22nd February 1974.

This is a reference by the learned City & Additional District Magistrate Karachi recommending that the order of the learned Additional City Magistrate V, Karachi, under section 516‑A, Criminal Procedure Code whereby the latter ordered that a rickshaw bearing the number KAU 2040 be handed over to respondent No. 2, Ali Mahmood, who was the accused person in the case before the learned Additional City Magistrate, be set aside and rickshaw directed to be kept in the custody of the police till the disposal of the case.

2. Respondent No. 1, Abdul Aziz, was the first informant in the case and it was his allegation that the rickshaw in question was stolen and that be attempted to lodge a report with the police but, upon one pre-text or the other, the police refused to record his report until some nine months after the present rickshaw was recovered from Syed Mahmood. There after Syed Mahmood has been prosecuted under section 379, of the Pakistan Penal Code and the learned trial Magistrate has passed an order under section 516‑A of the Criminal Procedure Code directing that the rickshaw be handed over to Ali Mahmood pending the disposal of the case it is now quite clear that the rickshaw originally belonged to one Syed Mahmood who is the brother of the accused Alt Mahmood and that between Syed Mahmood and Abdul Aziz there was an agreement as a result of which the possession of the rickshaw was transferred to Abdul Aziz who had agreed to purchase it for a sum of Rs. 6,500 of which 1,500 rupees had been paid and the rest was to be paid in instalments. Both the rickshaw and the documents were handed over, it is alleged, to the first respondent, Abdul Aziz. Against the order of the learned Magistrate ordering that possession of the rickshaw be handed over to Ali Mahmood, Abdul Aziz filed an application for revision before the City and Additional District Magistrate as a result of which that learned Magistrate has made this reference. Before the learned City & Additional District Magistrate the main question that was argued was whither the agreement between the parties amounted to one of hire‑purchase or an agreement to sell and whether title had passed in the rickshaw or not. The learned City Additional District Magistrate, quite rightly in my opinion, refrained from expressing any view upon the question whether an offence under section 379, has been committed or not. However, in answering the question which was before hurt, namely, whether in the circumstances the rickshaw was properly handed over to the accused or not he entered into the question as to the effect of this agreement. Both sides argued before him that title had passed to them and the learned Magistrate has quoted exten sively from cases decided by various High Courts and has come to the con clusion apparently that title passed to the buyer, that is to say, respondent No. 1, Abdul Aziz, who was the applicant before him, although he does not in express terms say that title had so passed. So holding, he thought that the learned Additional City Magistrate was in error in handing over the custody of the rickshaw to the accused person merely because the registra tion book stood in favour of the accused's brother the said Syed Mahmood who was admittedly the original owner of the rickshaw.

3. Now I do not think that the learned City & Additional District Magistrate approached this case correctly at all, for. I do not agree that a criminal court ought to take into account a question of title at all for that is a matter for the civil Courts. The question before the learned Magistrate was really whether the learned Additional City Magistrate had acted pro perly and used a correct discretion under section 516‑A, Criminal Procedure Code in making the order which he did. Of necessity such an order is an interlocutory order and ought to be made mainly for the purpose of safeguarding the property and of safeguarding such rights of the parties as the criminal Court would have been entitled to consider at the conclusion of the trial. At the conclusion of the trial under section 517, the Magistrate is bound to hand over possession not to the person who is the owner of the property but to the person who is entitled to the possession thereof. Until it is decided whether theft was in fact committed or not it is difficult to see bow a Magistrate can reach the conclusion as to who is entitled to possession. Nevertheless it is his duty to make some order in regard to the custody of the property and I should, therefore, think that unless there are sufficient circumstances for a contrary view, possession ought to be handed over to the person from whom the property has been recovered or to be kept is the custody of the police. The grave objection to following the latter course is that the property, will theta lie uselessly and probably greatly depreciate in value to no body's advantage. In these circumstances I think the learned Magistrate was perfectly correct in awarding custody of the rickshaw to the person from whom it was recovered more particularly as‑ it was recovered some nine months after the theft is alleged to have occurred. Nevertheless I do not think that he is entitled to such possession but only that it is the more reasonable course to follow pending an order under section 517 which can only be made at the conclusion of the trial. I am unable, therefore to accept the recommendation of the City & Additional District Magistrate and would confirm the order of the Additional City Magistrate provide that the accused is required to give security in the sum of Rs. 5,000 and bind himself to produce the rickshaw during the trial and to abide by any order that might be passed at the end of the trial for the final disposal of the rickshaw in question. If he furnishes the security the rickshaw should be handed over to him but, if he does not, then the only course that is left open is to entrust the custody of the rickshaw to the police. There will be an order in these terms.

Reference not allowed.

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